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Major changes for Lasting Powers of Attorney

07 November 2016 #Private Client


The High Court recently reversed a decision made by Senior Judge Lush in the Court of Protection concerning the joint appointment of attorneys in Lasting Powers of Attorney.  (Miles and another v Public Guardian [2015] EWHC 2960 (Ch).)

Senior Judge Lush, sitting in the Court of Protection previously held that where attorneys were appointed jointly, it was not possible for one to continue acting alone if the other either passed away or became unable to act.

On appeal in the High Court, Mr Justice Nugee reversed the decision and went further by providing specimen wording for use when looking to achieve this objective, set out below:

"I wish my attorneys A and B to act as follows:

  • So long as both attorneys are able and willing to act, I wish them to make the following decisions jointly: sale of the house; transactions over £10,000 [or the like] but all other decisions to be made jointly and severally;
  • In the event that one of my original attorneys A and B is unable or unwilling to act, I then appoint the remaining of my original attorneys A or B, as the case may be, as replacement attorney to act solely;
  • In the event of both my original attorneys being unable or unwilling to act, I appoint C as a replacement attorney to act solely [with whatever variations the case requires]."

Mr Justice Nugee felt that there was nothing in the Mental Capacity Act 2005 that prohibited such a provision, so long as it was clearly drafted.

The Court of Protection had previously recommended achieving this objective by using two separate Lasting Powers of Attorney (LPAs).  The first LPA appointing the attorneys jointly and the second appointing them jointly and severally, but contingent on the first LPA failing.

Mr Justice Nugee felt that this proposed two document solution was cumbersome and potentially confusing.  Instead, he explained that he could not see any reason why a donor could not include the following wording in one LPA instead:

“I appoint the named individuals A and B to act jointly and in the event of one of them ceasing to be capable or willing to act, I appoint the surviving one, A or B as the case may be to act alone.”

Clearly this is a complex area and it is easy for errors to be made when preparing LPAs, which could result in them being rejected when submitted for registration.  We therefore strongly recommend that clients seek professional advice when looking to make LPAs. 

Please don’t hesitate to contact a member of our private client team if you have any queries or require any additional information.

Clarkslegal, specialist Private Client lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Private Client matter please contact Clarkslegal's private client team by email at privateclient@clarkslegal.com by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.

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